1. When the sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after review of all the evidence, viewed in the light most favorable to
the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.

2. A person who intentionally aids and abets another in the commission of a crime with
intent to promote or assist in its commission is criminally responsible for the crime
committed regardless of the extent of a defendant's participation, if any, in the actual
commission of the crime. Intent may be inferred from circumstantial evidence. A person
who aids and abets in the commission of a crime may be charged and convicted as a
principal.

3. Specific intent may be shown by acts, circumstances, and inferences reasonably deducible
therefrom and need not be established by direct proof.

4. The crime of conspiracy contains two essential elements: (1) an agreement between two
or more persons to commit or to assist in committing a crime and (2) an overt act in
furtherance of the conspiracy committed by one or more of the conspirators.

5. To establish a conspiracy it is not necessary that there be any formal agreement
manifested by formal words, written or spoken; it is enough if the parties tacitly come to
an understanding in regard to an unlawful purpose and this may be inferred from
sufficiently significant circumstances. Further, while an agreement is a necessary element
of a conspiracy, the existence of the agreement does not need to be proved directly but
may be inferred from other facts proved.

7. Before counsel's assistance is determined to be so defective as to require reversal of a
conviction, a defendant must establish two things: First, the defendant must establish that
counsel's performance was deficient. This requires a showing that counsel made errors so
serious that counsel's performance was less than that guaranteed to the defendant by the
Sixth Amendment to the United States Constitution. Second, the defendant must establish
that the deficient performance prejudiced the defense. This requires a showing that
counsel's errors were so serious as to deprive the defendant of a fair trial.

8. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
must be highly deferential. There is a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance. To show prejudice, a
defendant must show a reasonable probability that but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. A court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or jury.

9. The burden is on an appellant to furnish a record which affirmatively shows that
prejudicial error occurred in the trial court. Without such a record, an appellate court
presumes the action of the trial court was proper.

10. A defendant possesses the burden to establish that his or her counsel's
representation was
ineffective. Mere conclusory statements are insufficient to satisfy this burden.

11. An issue not briefed by an appellant is deemed waived or abandoned.

12. K.S.A. 60-460(i)(2) allows hearsay evidence where a statement was made while a
defendant and a declarant were participating in a plan to commit a crime or a civil wrong
and the statement was relevant to the plan or its subject matter and was made while the
plan was in existence and before its complete execution or other termination. The
coconspirator exception is a firmly rooted hearsay exception.

13. Before a coconspirator's statement may be admitted into evidence, five elements
must be
established: (1) the person testifying must be a third party; (2) the out-of-court statement
about which the person will testify must have been made by one of the coconspirators; (3)
the statement of the coconspirator must have been outside the presence of the accused; (4)
the statement of the coconspirator must have been made while the conspiracy was in
progress; and (5) the statement must be relevant to the plan or its subject matter.

14. Hearsay statements made during an attempt to conceal a crime are admissible
under
K.S.A. 60-460(i)(2). Moreover, the acts and declarations of one conspirator in the
prosecution of the crime or its concealment in the foregoing respects are considered the
acts and declarations of all and are evidence against all coconspirators.

15. The decision whether to call a certain witness is a matter of trial strategy. A
defendant
bears the burden of establishing that his or her counsel's alleged deficiencies were not the
result of strategy.

16. The basis for the admission of expert testimony is necessity arising out of the
particular
circumstances of the case. To be admissible, expert testimony must be helpful to the jury.
Where the normal experience and qualifications of lay persons serving as jurors permit
them to draw proper conclusions from given facts and circumstances, expert conclusions
or opinions are inadmissible. An expert's opinion, under K.S.A. 60-456, is admissible up
to the point where an expression of opinion would require him or her to pass upon the
credibility of witnesses or the weight of disputed evidence.

17. Multiplicity is the charging of a single offense in several counts of a complaint or
information. The reason multiplicity must be considered is that it creates the potential for
multiple punishments for a single offense in violation of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights.

18. Whether convictions are multiplicitous is a question of law subject to unlimited
review. A
claim of multiplicity may be raised for the first time on appeal when necessary to serve
the ends of justice and prevent a denial of fundamental rights.

19. In determining when charges in a complaint or an information are multiplicitous,
the
strict elements test must be used.

20. Under the strict elements test, if each charge requires proof of an element not
necessary to
prove the other charge, the charges, even if they stem from a single act, are not
multiplicitous.

GREEN, J.: After a jury trial, Nicholas Moody was convicted of attempted first-degree
murder, conspiracy to commit first-degree murder, aggravated intimidation of a witness, and
conspiracy to commit aggravated intimidation of a witness. The court sentenced Moody to 155
months' imprisonment for attempted first-degree murder. It also sentenced Moody to concurrent
sentences of 117 months for conspiracy to commit first-degree murder, 18 months for aggravated
intimidation of a witness, and 8 months for conspiracy to commit aggravated intimidation of a
witness. Moody timely appealed.

While on appeal, Moody moved this court to remand his case to the district court for a
hearing regarding ineffective assistance of trial counsel. Moody alleged that his trial counsel was
ineffective because he failed to: (1) present a video taped statement of Travis Kohn, a State
witness, to impeach the witness; (2) object to hearsay evidence presented by Gary Woodard's trial
testimony; (3) interview or subpoena Isaac Rodriguez who could have testified on Moody's
behalf; and (4) call an expert witness to testify about the effects of drug abuse on memory recall.
In January 2005, this court remanded Moody's case to the district court under State v. Van
Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for a determination regarding his claims of
ineffective assistance of trial counsel.

Following an evidentiary hearing, the district court held that Moody's trial counsel was
effective and denied Moody's request for a new trial. The central issue on appeal is whether the
evidence was sufficient to sustain Moody's convictions. We determine that the evidence was
sufficient for a factfinder to conclude that Moody was guilty beyond a reasonable doubt of the
charges. In addition, Moody contends that the trial court abused its discretion in determining that
Moody's trial counsel was effective. We disagree. Moody further asserts that his convictions for
conspiracy to commit first-degree murder and conspiracy to commit aggravated intimidation of a
witness were multiplicitous. We disagree. Finally, Moody maintains that his convictions for
attempted first-degree murder and aggravated intimidation of a witness were multiplicitous. We
disagree. Accordingly, we affirm.

I. Was the Evidence Sufficient to Support Moody's Convictions?

Moody asserts that the trial evidence was insufficient to support his convictions. Moody
presumably argues that the evidence was insufficient to support all of his convictions as he has
failed to specify any single conviction. The State argues that the evidence was clearly sufficient
to show Moody acted knowingly and intentionally but does not discuss the evidence supporting
the convictions.

"'When the sufficiency of the evidence is challenged in a criminal case, the
standard of
review is whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.' [Citation omitted.]" State v. Calvin,
279 Kan. 193,
198, 105 P.3d 710 (2005).

A conviction may be sustained only upon evidence where every element of a crime is proven
beyond a reasonable doubt. State v. Star, 27 Kan. App. 2d 930, 934, 10 P.3d 37,
rev. denied 270
Kan. 903 (2000). A conviction of even the gravest offense may be sustained by circumstantial
evidence. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004).

Moody essentially challenges the credibility of certain witnesses. He simply contends that
the admitted drug usage and resulting memory difficulties of "key witnesses" raises questions as
to the sufficiency of the evidence. Nevertheless, questions of credibility are solely the province of
the jury. See State v. Bledsoe, 272 Kan. 1350, 1359, 39 P.3d 38 (2002). In reviewing
the
evidence for sufficiency, an appellate court cannot weigh the evidence or pass on the credibility
of witnesses. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). Thus, we
decline Moody's
invitation to reweigh the evidence or reassess the credibility of witnesses.

The evidence presented at trial was sufficient for a rational factfinder to have found
Moody guilty beyond a reasonable doubt. The evidence established that on October 18, 2002,
Kohn, Josh Talbert, and Woodard traveled from Colorado Springs, Colorado, to Ulysses, Kansas,
to visit Talbert's friend, Rodriguez.

According to Kohn, before they left Colorado, Talbert mentioned that Rodriguez wanted
someone to kill Eric Pike. Therefore, Kohn decided to take two guns with him to Ulysses. Kohn
stated that on October 19, 2002, Rodriguez asked him to kill Pike. Rodriguez and Kohn were
alone when this conversation occurred. Kohn testified that Rodriguez wanted Pike killed because
Pike was scheduled to testify against Rodriguez at a trial on charges of armed robbery. After
Kohn agreed to kill Pike, Rodriguez took Kohn to Moody's house in Ulysses.

Kohn testified that Moody drove him to Liberal three times with the intent to kill Pike.
Moody and Kohn were the only individuals involved in the plan who made the trips to Liberal.
Kohn and Woodard testified that Moody drove Kohn to Liberal knowing that Kohn planned to
kill Pike. Kohn testified that he got scared on the first two trips to Liberal and did not go through
with the crime. On the way back to Ulysses after the first trip to Pike's house, Moody and Kohn
discussed where Kohn could meet Moody after Kohn killed Pike. According to Kohn, Moody
called Rodriguez on both return trips from Liberal. After the second trip to Liberal, Moody and
Kohn returned to Moody's house. There, Rodriguez beat Kohn and told him that he would kill
Kohn's girlfriend and Kohn's parents if Kohn did not kill Pike.

On October 21, 2002, Moody again drove Kohn to Pike's residence in Liberal. Rodriguez
warned Kohn that Moody would be armed and would shoot him if he acted nervous. Moody kept
his hand on a revolver in his lap the entire trip to Liberal. Kohn stated that he believed that
Moody would shoot him if he did not kill Pike. When they got to Liberal, Moody told Kohn to
load the gun stashed in the glove compartment and told Kohn that "after [he] did it, just run down
that direction like hell and [Moody] would be there waiting." Moody dropped Kohn off at Pike's
house. Kohn's attempt to kill Pike, however, was unsuccessful. Kohn knocked on Pike's door and
pointed a gun at Pike's head when he opened the door. Kohn, however, stated that he had stuffed
debris in the gun so it would misfire, but also denied ever pulling the trigger. After this, Kohn ran
to meet Moody, but he was gone. Kohn was later arrested.

Woodard testified that at some point during the weekend, Rodriguez told him that Moody
had called and told him that there were so many police officers around Pike's house that Kohn
could not "get to him." He also testified that on October 21, Rodriguez had told him that Moody
had driven Kohn to Liberal so Kohn could kill Pike. Woodard stated that later that night, Moody
showed up at Rodriguez' house "freaking out" because he had left Kohn in Liberal. According to
Woodard, Moody said he heard two gunshots, saw two police cars, got scared, and then drove off
and left Kohn. Moody's girlfriend, Ashley Colbert, testified that Moody called her the night of
the incident and told her to go to his mother's house because something bad was likely to happen.

Pike testified that Kohn attempted to fire the gun, but it malfunctioned. The police officer
who found Kohn's gun also testified that one of the rounds in the gun had an indentation off to
one side but near the primer, indicating a misfire. Police Officer Delton Brown, who interviewed
Moody after his arrest, testified that although Moody admitted driving Kohn to Liberal, Moody
stated that he had not known Kohn's reason for going to Liberal.

Kohn admitted that he, Talbert, and Woodard had used a lot of drugs during the days
preceding the attempted murder. Kohn stated that he had been high frequently on drugs over a
period of 8 months before the incident. Kohn conceded that this drug usage had affected his
long-term memory and his methamphetamine usage had definitely affected his memory.
Woodard also
admitted that he had been up for 7 days straight while using drugs before October 21.

Moody testified that Rodriguez had asked him to take Kohn to Liberal to pick up a car
loaded with marijuana. Moody stated that he took Kohn to Liberal once on Saturday, but
Rodriguez called on the way there and stated that the car was not ready. On October 21,
Rodriguez told Moody that the car was ready. Hence, Moody drove Kohn to Liberal, dropped
him off, and drove back to Ulysses.

To prove that Moody had committed the crime of attempted first-degree murder, the State
was required to prove (1) that Moody performed an overt act toward the commission of
first-degree murder–an intentional and premeditated killing; (2) that he did so with the
intent to
commit first-degree murder; (3) that Moody failed to complete the commission of this crime; and
(4) that this act occurred on or about October 21, 2002, in Seward County, Kansas. See K.S.A.
21-3301; K.S.A. 21-3401; PIK Crim. 3d 55.01; PIK Crim. 3d 56.01.

A person who intentionally aids and abets another in the commission of a crime with
intent to promote or assist in its commission is criminally responsible for the crime committed
regardless of the extent of the defendant's participation, if any, in the actual commission of the
crime. K.S.A. 21-3205(1); State v. Dunn, 243 Kan. 414, 431, 758 P.2d 718 (1988).
Intent may be
inferred from circumstantial evidence. 243 Kan. at 431. A person who aids and abets in the
commission of a crime may be charged and convicted as a principal. State v. Smolin,
221 Kan.
149, 152, 557 P.2d 1241 (1976).

A review of the record reveals sufficient evidence existed to show that Moody knew why
he was taking Kohn to Liberal and that Moody aided Kohn in his attempt to kill Pike. The
evidence showed that Moody made the overt act of driving Kohn to Liberal with the intent for
Kohn to kill Pike. Although Moody maintains that he did not know this was why Kohn wanted to
go to Liberal, Kohn and Woodard's testimony established that Moody assisted in Kohn's attempt
to kill Pike. The evidence further established that Kohn took the overt act of firing the gun at
Pike.

To establish that Moody had committed the crime of conspiracy to commit first-degree
murder, the State was required to prove (1) that Moody agreed with others to assist in the
commission of the crime of first-degree murder; (2) that he agreed with the intent that the crime
be committed; (3) that Moody or any party to the agreement acted in furtherance of the
agreement; and (4) that this act occurred on or about October 21, 2000, in Seward County,
Kansas. See K.S.A. 21-3302; PIK Crim. 3d 55.03. The evidence demonstrated that Moody
agreed to assist in the killing of Pike. Moody acted in furtherance of the agreement by driving
Kohn to Pike's house.

Finally, to prove that Moody had committed the crime of aggravated intimidation of a
witness, the State had to prove (1) that Moody prevented or dissuaded or attempted to prevent or
dissuade Pike from giving testimony at a trial; (2) that the act was accompanied by an expressed
or implied threat of force or violence against Pike or done in furtherance of such a conspiracy; (3)
that Moody did so knowingly and maliciously; and (4) that this act occurred on or about October
21, 2002, in Seward County, Kansas. See K.S.A. 21-3833; PIK Crim. 3d 60.06-B. Maliciously
means done with an intent to harm or injure another person or with an intent to thwart or interfere
in any manner with the administration of justice. PIK Crim. 3d 60.06-B. Likewise, to establish
that Moody had committed conspiracy to commit aggravated intimidation of a witness, the State
was required to prove the elements of conspiracy with regards to the commission of aggravated
intimidation of a witness. See K.S.A. 21-3302; K.S.A. 21-3833.

Here, the evidence established that Moody drove Kohn to Pike's house with the intent to
kill Pike. Kohn's testimony showed that Kohn was attempting to kill Pike at Rodriguez' request
to keep him from testifying at Rodriguez' trial. Although there was no testimony clearly
establishing that Moody was acting to prevent Pike from testifying, "[s]pecific intent may be
shown, however, by 'acts, circumstances and inferences reasonably deducible therefrom and need
not be established by direct proof.' [Citation omitted.]" State v. Johnson, 258 Kan.
61, 67, 899
P.2d 1050 (1995). Hence, a rational factfinder could have inferred that Moody had acted with the
intent to prevent Pike from testifying at Rodriguez' trial. The evidence showed that Moody
knowingly and intentionally aided Kohn in Kohn's attempt to kill Pike in order to prevent Pike
from testifying.

Finally, the crime of conspiracy contains two essential elements: "(1) an agreement
between two or more persons to commit or to assist in committing a crime and (2) an overt act in
furtherance of the conspiracy committed by one or more of the conspirators." State v.
Daugherty,
221 Kan. 612, 619, 562 P.2d 42 (1977).

"'To establish a conspiracy it is not necessary that there be any formal agreement
manifested by formal words, written or spoken; it is enough if the parties tacitly come to an
understanding in regard to the unlawful purpose and this may be inferred from sufficiently
significant circumstances.' [Citation omitted.]

"Further, 'while an agreement is a necessary element of a conspiracy, the existence of the
agreement does not need to be proved directly but may be inferred from other facts proved.'
[Citation omitted.]" State v. Hernandez, 24 Kan. App. 2d 285, 291, 944 P.2d 188,
rev. denied 263
Kan. 888 (1997).

Again, although there was no direct evidence establishing an agreement on Moody's
behalf to prevent Pike from testifying, a rational factfinder could have inferred that Moody had
agreed to assist in the killing of Pike to prevent him from testifying at Rodriguez' trial. Again,
Moody acted in furtherance of the agreement by driving Kohn to Pike's residence.

In summary, after review of all the evidence, when viewed in the light most favorable to
the State, the evidence was sufficient for a rational factfinder to have found Moody guilty of all
charges beyond a reasonable doubt.

II. Did the Trial Court Err in Determining Moody's Trial Counsel was Effective?

Moody next contends that the trial court erred in finding that he received effective
assistance of trial counsel. A claim alleging ineffective assistance of counsel presents mixed
questions of fact and law. We must determine whether the trial court's findings of fact have
substantial support in the evidence and whether the trial court's conclusions of law follow as a
matter of law from those facts. State v. Davis, 277 Kan. 309, 315, 85 P.3d 1164
(2004).

In a case involving an issue of ineffective assistance of counsel, the Davis
court explained
the hurdles that a defendant must clear:

"'Before counsel's assistance is determined to be so defective as to require reversal
of a
conviction, the defendant must establish two things. First, the defendant must establish that
counsel's performance was deficient. This requires a showing that counsel made errors so serious
that counsel's performance was less than that guaranteed to the defendant by the Sixth
Amendment to the United States Constitution. Second, the defendant must establish that the
deficient performance prejudiced the defense. This requires a showing that counsel's errors were
so serious as to deprive the defendant of a fair trial.'" 277 Kan. at 314 (quoting State v. Orr,
262
Kan. 312, Syl. ¶ 1, 940 P.2d 42 [1997]).

Moreover, as our Supreme Court has observed, a strong presumption exists that counsel's
conduct comes within the scope of reasonable professional assistance:

"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
must be
highly deferential. There is a strong presumption that counsel's conduct falls within the wide
range
of reasonable professional assistance. [Citation omitted.] To show prejudice, the defendant must
show a reasonable probability that but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider
the
totality of the evidence before the judge or jury. [Citation omitted.]" State v. Betts,
272 Kan. 369,
387-88, 33 P.3d 575 (2001).

With these standards firmly in mind, we turn now to the merits of this issue.

At trial, Kohn testified that after he pulled the gun on Pike, he ran away, then stuffed the
gun in a mailbox to hide it. On cross-examination, defense counsel elicited that Kohn had
originally told the police that putting the gun in the mailbox was part of the plan. Nevertheless,
Kohn admitted that that statement had been a lie because he had not previously planned to put the
gun in a mailbox. Swanson further elicited on cross-examination that Kohn had varied his story
to the police about payment amounts that Rodriguez had offered Kohn to kill Pike and the
reasons why he had attempted to kill Pike.

The district court found that Moody had failed to describe any material inconsistencies in
the video. Moreover, the district court noted that Moody had failed to introduce the video at the
evidentiary hearing. Without this evidence, the court determined it could not speculate that
counsel was ineffective for not presenting the video or calling Mease at the trial. The district
court also stated that a review of the trial transcript revealed that Swanson had elicited two
inconsistencies in Kohn's testimony during cross-examination.

Likewise, Moody has not presented this court with the video of Kohn's interview.
Moreover, Moody has failed to furnish this court with any information as to what the video or
Mease's testimony would have revealed beyond the inconsistencies Swanson had elicited during
Kohn's cross-examination. The burden is on an appellant to furnish a record which affirmatively
shows that prejudicial error occurred in the trial court. Without such a record, an appellate court
presumes the action of the trial court was proper. Holmes, 278 Kan. at 612.

Moody possesses the burden to establish that Swanson's representation was ineffective.
See Davis, 277 Kan. at 314. Mere conclusory statements are insufficient to satisfy
this burden.
State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). The record reveals that
Swanson
effectively cross-examined Kohn, revealing inconsistencies in his statements to police officers
and that he lied to police officers. Moody has failed to show that Swanson's performance was
deficient for failing to present the video or to call Mease to testify at trial.

B. Failure to Object to Hearsay Testimony

Moody argues that Swanson was ineffective because he failed to object to
hearsay
evidence admitted during Woodard's testimony.

As a preliminary matter, Moody contends that "numerous" instances existed where
hearsay was admitted at his trial. Nevertheless, Moody only argues that Swanson was ineffective
for failing to object to one specific segment of testimony. An issue not briefed by an appellant is
deemed waived or abandoned. Holmes, 278 Kan. at 622. We decline Moody's
invitation to search
the trial transcript for his trial counsel's other alleged failures to object to hearsay testimony.

In his motion for remand, Moody contended that there were several times when Swanson
should have objected to hearsay evidence. Nevertheless, Moody only specified Swanson's failure
to object to Woodard's testimony regarding Rodriguez' statement. The district court found no
error in Swanson's failure to object to hearsay evidence at trial. The district court determined that
Woodard's testimony regarding statements made by Rodriguez was admissible as a statement of a
coconspirator under K.S.A. 60-460(i)(2). The district court also held that Woodard's testimony
regarding statements Rodriguez claimed Moody made was admissible as multiple hearsay under
K.S.A. 60-463 and also met the exception to hearsay under K.S.A. 60-460(g) and K.S.A.
60-460(i)(2). The court finally determined that Woodard's testimony about statements made by
Talbert was admissible under K.S.A. 60-460(a) because Talbert testified at the trial and was
available for cross-examination. The court further found that all of the other hearsay statements
referring to the overall plan to kill Pike were admissible under the coconspirator exception to the
hearsay rule.

On appeal, Moody contends that Swanson was ineffective because he failed to object to
Woodard's testimony that Rodriguez had implicated Moody as a participant in the plan to kill
Pike. At trial, Woodard testified that on the night of the incident, Rodriguez explained to him
that Moody had driven Kohn to the crime scene. Woodard further testified that Rodriguez told
him that Moody had freaked "out because he ended up leaving [Kohn] in Liberal." According to
Woodard, Rodriguez stated that Moody told him that he had heard two gunshots and saw police
cars quickly proceeding in the direction of the victim's residence. This scared Moody and caused
him to flee the scene. Swanson objected to this testimony on the grounds that it was
nonresponsive to the question. The district court sustained the objection.

Swanson testified at the evidentiary hearing that he knew before trial that a large amount
of hearsay testimony would be admissible under the coconspirator exception. He maintained that
he and Moody had discussed not objecting to this hearsay evidence as part of their trial strategy,
allowing Moody to give hearsay testimony regarding what Rodriguez had told him. Moody
admitted at the hearing to having this discussion with Swanson.

K.S.A. 60-460(i)(2) allows hearsay evidence where the statement was made while "the
[defendant] and the declarant were participating in a plan to commit a crime or a civil wrong and
the statement was relevant to the plan or its subject matter and was made while the plan was in
existence and before its complete execution or other termination." The coconspirator exception is
a firmly rooted hearsay exception. See State v. Swafford, 257 Kan. 1023, 1040, 897
P.2d 1027
(1995), modified on other grounds 257 Kan. 1099, 913 P.2d 196 (1996). Our
Supreme Court has
established five prerequisites to the proper admission of a coconspirator statement:

"(1) the person testifying must be a third party; (2) the out-of-court statement about which
the
person will testify must have been made by one of the coconspirators; (3) the statement of the
coconspirator must have been outside the presence of the accused; (4) the statement of the
coconspirator must have been made while the conspiracy was in progress; and (5) the statement
must be relevant to the plan or its subject matter." State v. Bird, 238 Kan. 160, 176,
708 P.2d 946
(1985).

Moody maintains that Woodard's testimony was inadmissible under K.S.A. 60-460(i)(2)
because
it was made after the completion of the alleged conspiracy.

Our Supreme Court, however, has determined that hearsay statements made during an
attempt to conceal a crime are admissible under K.S.A. 60-460(i)(2). See State v.
Flynn, 274
Kan. 473, 509-10, 55 P.3d 324 (2002). In Flynn, the defendant argued that the trial
court erred in
admitting hearsay statements of a coconspirator at trial because the conspiracy was complete
when the statements were made. According to Flynn,

"'K.S.A. 60-460(i) codifies in substance the exception to the hearsay rule as stated
in
[State v. Borserine, 184 Kan. 405, 337 P.2d 697 (1959)]. In Borserine
this court accepted the view
that a conspiracy is not terminated when an attempt to conceal the offense is made. The acts and
declarations of one conspirator in the prosecution of the crime or its concealment in the foregoing
respects are considered the acts and declarations of all, and are evidence against all.' [Citation
omitted.]" 274 Kan. at 509-10.

The Flynn court stated that an ongoing conspiracy may be established by
circumstantial
evidence. 274 Kan. at 510 (citing Bird, 238 Kan. at 176-77). Because ample
circumstantial
evidence existed to establish that the purpose of the statements offered against the defendant
were made in an attempt to conceal the conspiracy, the Flynn court concluded that
the trial court
did not err in admitting the statements under K.S.A. 60-460(i)(2). 274 Kan. at 510.

Here, the circumstantial evidence established that Moody fled the scene in an attempt to
conceal the conspiracy. Moreover, as stated earlier, Kohn testified that he ran from Pike's house
and hid the gun in a mailbox to conceal the attempted murder and conspiracy. Rodriguez'
statements provided to Woodard were made on the night of the crimes. Sufficient circumstantial
evidence existed to establish that Rodriguez' statements to Woodard were made during the
conspirators' attempt to conceal the offense.

As a result, Woodard's testimony was admissible under the hearsay exception in K.S.A.
60-460(i)(2). The statements satisfied the five requirements of Bird: (1) the person
testifying–Woodard–was a third party; (2) the out-of-court statements were made
by one of the
coconspirators–Rodriguez; (3) the statements were made outside the presence of Moody;
(4) the
statements were made while the conspiracy was in progress; and (5) the statements were relevant
to the conspirators' plan to kill Pike. Thus, Swanson's performance was not deficient for deciding
not to object to Woodard's admissible testimony.

C. Failure toInterview or Subpoena Isaac Rodriguez

Moody contends that his counsel was ineffective for failing to call Rodriguez as a
witness. Moody alleges that Rodriguez would have corroborated Moody's assertion that he had
no knowledge of the attempt to murder Pike. Moody further contends that his counsel was
ineffective for contacting Rodriguez' former counsel instead of talking to Rodriguez' current
counsel.

Rodriguez testified at the evidentiary hearing that before Moody's trial, he told his
attorney, Steve Upshaw, that he wanted to testify at Moody's trial. Rodriguez maintained that he
would have testified that Moody was doing him a favor by taking Kohn to Liberal to pick up a
car filled with marijuana. Nevertheless, according to Rodriguez, Swanson never spoke to him.
Rodriguez admitted that he had pled no contest to conspiracy to commit attempted first-degree
murder and aggravated intimidation of a witness, but asserted that he did not ask Kohn to shoot
Pike.

Moody testified that he had asked Swanson to speak with Rodriguez because he thought
Rodriguez' testimony would be helpful. Nevertheless, Moody maintained that Swanson stated
that Rodriguez would not be a good witness because he was the "bad guy in the situation."
Swanson admitted that he and Moody had discussed which witnesses would be beneficial.
Swanson did not recall Moody asking him to speak with Rodriguez. Swanson, however, spoke to
Rodriguez' former counsel, Clint Peterson. Although Swanson did not recall his conversation
with Peterson, he assumed that he was trying to discover what deals were made and if Rodriguez
had agreed to testify for or against anyone. Swanson did not think he talked to Upshaw, who
replaced Peterson as Rodriguez' attorney.

Swanson testified that neither Moody nor any of the other coconspirators' attorneys
indicated that Rodriguez was prepared to testify on Moody's behalf. Swanson stated that
Rodriguez had pled no contest and was sentenced just before Moody's trial.

The district court determined that Rodriguez' and Moody's testimony at the evidentiary
hearing lacked credibility because they were friends. Moreover, they had had an opportunity to
communicate before the hearing. The court further determined that despite Swanson's failure to
speak to Upshaw before trial, there was no indication that Swanson had any reason to believe that
Rodriguez would be willing to testify.

The decision whether to call a certain witness is a matter of trial strategy. See
Winter v.
State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). Moody bears the burden of
establishing that
Swanson's alleged deficiencies were not the result of strategy. See State v. Gleason,
277 Kan.
624, 644, 88 P.3d 218 (2004).

Although Swanson spoke with an attorney who no longer represented Rodriguez,
Swanson testified that he had reviewed Rodriguez' case file and determined that Rodriguez
would likely be unwilling to testify at Moody's trial because he had refused to talk about the
incident in his own case. Moody even admitted at the evidentiary hearing that he had previously
testified that Rodriguez was unwilling to talk. Moreover, Swanson testified that none of the
coconspirators' attorneys, including Upshaw, stated that Rodriguez was willing to testify on
Moody's behalf. Furthermore, Moody admitted that Swanson had provided him with a strategic
reason for not calling Rodriguez as a witness. Moody has failed to prove that the situation would
have been different had Swanson spoke with Upshaw. Hence, Moody has failed to show that
Swanson's decision not to call Rodriguez as a witness was anything beyond a strategical decision
within the discretion of a trial attorney.

Moreover, the trial court stated that even if counsel was ineffective for speaking with
Rodriguez' former counsel, Moody's assertion failed under the second prong of the test because
Rodriguez' story lacked any indicia of credibility. Even if Swanson's performance was
ineffective, Moody must also establish that there was a reasonable probability that, but for
Swanson's trial errors, the result of the trial would have been different. Gleason, 277
Kan. at 644.
This court cannot weigh a trial court's determination regarding credibility. See Mays,
277 Kan. at
363. Moreover, given the numerous admissions by witnesses that Rodriguez had asked Kohn to
kill Pike and that Moody was involved in this conspiracy, there was no reasonable probability
that Rodriguez' testimony would have changed the outcome of Moody's trial. As a result,
Swanson's argument fails.

D. Failure to Call an Expert Witness

Moody contends that his counsel was ineffective for failing to call an expert
witness to
discuss the effects of drug use on memory.

Moody called Wally Mechler, a drug and alcohol counselor, as a witness at his
evidentiary hearing. Mechler testified that a prolonged drug-induced high can affect one's ability
to perceive occurrences accurately. In Mechler's opinion, an individual's perception of events
would be "suspect at best" when he admittedly abused methamphetamine for 8 months.

Swanson testified that he and Moody had developed a trial strategy to cross-examine the
witnesses at length about how drug use would have affected their judgment and memory.
Swanson saw no need for an expert witness because the coconspirators and other witnesses had
admitted extensive drug usage in previous testimony, and he felt he could get them to admit this
upon cross-examination. Swanson stated that Moody never requested or suggested an expert
witness. Although Moody countered that he had asked Swanson to obtain an expert drug witness,
Swanson responded that the jury would have common knowledge of the damaging results of drug
use, making an expert witness unnecessary.

The district court determined that an expert witness would have added very little beyond
what Swanson brought out on cross-examination of witnesses. Consequently, the court held that
there was no error in Swanson's decision to not hire an expert witness.

"'[t]he basis for the admission of expert testimony is necessity arising out of the
particular circumstances of the case. To be admissible, expert testimony must be helpful to the
jury. Where the normal experience and qualifications of lay persons serving as jurors permit
them
to draw proper conclusions from given facts and circumstances, expert conclusions or opinions
are inadmissible. [Citation omitted.] An expert's opinion, pursuant to K.S.A. 60-456, is
admissible
up to the point where an expression of opinion would require [the expert] to pass upon the
credibility of witnesses or the weight of disputed evidence. [Citation omitted.]'" State v.
Arrington, 251 Kan. 747, 752, 840 P.2d 477 (1992).

During cross-examination at trial, Swanson elicited detailed admissions of excessive drug
usage and its damaging effects upon memory from Kohn and Woodard. Kohn admitted that he
had used methamphetamine continually for 8 months and that it had definitely affected his
memory while he was using the drug. Woodard revealed that he had been constantly awake and
using methamphetamine for 7 days straight before the incident. He admitted that this caused
some decision-making and memory problems.

Considering the above testimony, the district court determined that an expert witness,
providing testimony in line with Mechler's testimony, would likely not have been helpful because
the jury would have been able to draw this information from the testimony of Kohn and
Woodard. Further, any expert testimony specifically attacking the credibility of Kohn and
Woodard due to drug use would have been inadmissible.

Therefore, Swanson's performance was not deficient for making the determination that an
expert drug witness was unnecessary. The record reveals Swanson effectively elicited Kohn's and
Woodard's admission of their excessive drug use and its adverse effects upon their memories.

E. Failure to Submit Moody's Interview as Rebuttal Evidence

Moody alleges that trial counsel's failure to submit his videotaped interview with Mease
as rebuttal evidence "was crucial and could have had an enormous impact on the decision making
of the jury." Moody contends that the video would have revealed that a statement by the
prosecutor during cross-examination of Moody was false.

During Moody's trial, he testified that while being interviewed by Mease after his arrest,
he attempted to tell Mease that he drove Kohn to Liberal so Kohn could pick up a car loaded with
marijuana. Nevertheless, Mease called Moody a liar and cut the interview short. Upon
cross-examination, the State asked Moody, "And so if [the officers who conducted the interview]
said
in that interview that you said, 'Well, you knew something about some guy was supposed to get
killed,' they wouldn't be telling the truth?" Moody denied making that statement to the officers.
There was no objection to the State's question.

At the evidentiary hearing, Moody testified that he never admitted during the interview
that he knew someone was going to get killed. Moody indicated that after the State's question, he
asked Swanson to listen to the video of the interview and play the video in court. The video was
never shown to the jury.

The video was played at the evidentiary hearing. Swanson testified that he did not recall
Moody asking him to show the video to the jury. Although Swanson remembered watching the
video of the interview with Moody in preparation for the trial, he did not recall watching the
video during a recess at the trial.

The court determined that nothing positive for Moody had been revealed in the video.
The video showed Mease calling Moody a liar for telling the same story that he had furnished at
trial. The court determined that it would have been ineffective assistance of counsel if Swanson
had shown the video at trial.

Moody has not included the video in the record on appeal. Moody has the burden to
furnish a record that establishes prejudicial trial errors. See Holmes, 278 Kan. at 612.
Because the
video was not included in the record, this court presumes the action of the trial court was proper.
See Holmes, 278 Kan. at 612.

Moreover, Swanson called the prosecutor's statement into doubt during his closing
argument. Swanson stated that after asking Moody if he had made the admission during his
interview, the State asked for a recess to bring in the video to show that Moody was lying.
Nevertheless, Swanson argued that the State's decision to not present the video or call Mease to
testify should have created doubt in the jury's mind. Moody has failed to demonstrate that
Swanson's performance was deficient due to his failure to present the video at trial.

In summary, Moody has failed to prove that Swanson's representation was ineffective in
any manner. A thorough review of the trial transcript reveals that Swanson's performance was not
less than that guaranteed by the Sixth Amendment and did not deprive Moody of a fair trial.

III. Are Moody's Convictions for Conspiracy to Commit First-degree Murder and
Conspiracy to Commit Aggravated Intimidation of a Witness Multiplicitous?

Next, Moody contends that his convictions for conspiracy to commit first-degree murder
and conspiracy to commit aggravated intimidation of a witness are multiplicitous. Relying on
State v. Mincey, 265 Kan. 257, 963 P.2d 403 (1998), Moody contends that a single
continuing
conspiracy cannot be broken into subagreements for the purpose of multiple prosecutions.
Although the State conceded in its brief that Moody's convictions for conspiracy to commit
first-degree murder and conspiracy to commit aggravated intimidation of a witness were
multiplicitous, the State withdrew its concession during oral argument based on our Supreme
Court's recent decision in State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005). In that
case, our
Supreme Court adopted the use of a strict elements test in determining when charges in a
complaint or an information are multiplicitous. The Patten court held that if each
charge requires
proof of an element not necessary to prove the other charge, the charges, even if they stem from a
single act, are not multiplicitous. 280 Kan. 385, Syl. ¶ 3.

Whether convictions are multiplicitous is a question of law subject to unlimited review.
State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001). While Moody failed to
raise the
multiplicity issue at trial, a claim of multiplicity may be raised for the first time on appeal when
necessary to serve the ends of justice and prevent a denial of fundamental rights. State v.
Groves,
278 Kan. 302, 303-04, 95 P.3d 95 (2004).

"Multiplicity is the charging of a single offense in several counts of a complaint or
information.
The reason multiplicity must be considered is that it creates the potential for multiple
punishments
for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution and section 10 of the Kansas Constitution Bill of Rights."
Robbins, 272
Kan. at 171.

Consequently, we will address Moody's multiplicity issue.

The State may not split a single offense into separate parts when there is a single
wrongful act which does not furnish the basis for more than one criminal prosecution.
Nevertheless, when the criminal conduct of the defendant supports convictions for more than one
crime, K.S.A. 2005 Supp. 21-3107 provides statutory authority for multiple convictions even
though the criminal conduct of a defendant consists of a single transaction. See
Mincey, 265 Kan.
at 262.

As stated earlier, Moody bases his multiplicity argument on Mincey. In that
case, our
Supreme Court reversed the defendant's conviction for conspiracy to commit aggravated robbery
because it was multiplicitous with her conviction for conspiracy to commit first-degree murder.
The Mincey court stated:

"A single continuing conspiracy, however diverse its objects, cannot be broken down into
component sub-agreements for the purpose of multiple punishments or multiple prosecutions.
When separate conspiracies are alleged and both are founded on a general conspiracy statute, the
relevant inquiry is whether there existed more than one agreement to perform an
illegal act or
acts." 265 Kan. at 268.

Based on the evidence presented during Moody's trial, it was apparent that one agreement
existed between Moody and the other conspirators to kill Pike to prevent him from testifying at
Rodriguez' trial. This would seem to suggest that Moody's conspiracy convictions were
multiplicitous under the test used in Mincey.

Nevertheless, in Patten, our Supreme Court held that a strict elements test
should be used
in determining when charges are multiplicitous. Leading to its holding in Patten that
the strict
elements test should be adopted, our Supreme Court reviewed and discussed several of its prior
decisions. Citing State v. Schuette, 273 Kan. 593, 600-01, 44 P.3d 459 (2002), the
Patten court
stated that two sources of multiplicity existed:

"'"The concept of multiplicity in Kansas comes from two sources. The first is the
traditional 'common-law' multiplicity concept. This exists where the State attempts to use a
single
wrongful act as the basis for multiple charges and is based on the merger of the charges.
State v.
Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas
law
since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 Pac. 346 (1884),
wherein we
stated: '[U]pon general principles a single offense cannot be split into separate parts, and the
supposed offender be prosecuted for each of such separate parts, although each part may of itself
constitute a separate offense.' The test for whether the offenses merge and are, therefore,
multiplicitous is whether each offense charged requires proof of a fact not required in proving the
other; if so, then the offenses do not merge and are not multiplicitous. Garnes, 229
Kan. at 373.
Offenses also do not merge if they are committed separately and severally at different times and
at
different places. 229 Kan. at 373."

"'The second source, or layer, of the multiplicity analysis formerly came by statute
in
K.S.A. 21-3107(2)(d). K.S.A. 21-3107(2)(d) defined an included offense as "a crime necessarily
proved if the crime charged were proved" and stated that a defendant could not be convicted of
both the crime charged and the included offense. This statute was amended in 1998, and
subsection (2)(d) was eliminated. L. 1998, ch. 185, sec. 1. It was replaced with language defining
an included crime as "a crime where all elements of the lesser crime are identical to some of the
elements of the crime charged." See K.S.A. 2001 Supp. 21-3107(2)(b). The present statutory
language in essence mirrors the common-law elements test, thereby leaving it as the only
remaining test for multiplicity. See also State v. Saiz, 269 Kan. 657, 662-63, 7 P.3d
1214 (2000)
(for crimes committed after effective date of 1998 amendment of K.S.A. 21-3107, second prong
of State v. Fike, 243 Kan. 365, 757 P.2d 724 [1988], disregarded).' 273 Kan. at
600-01." Patten,
280 Kan. at 388-89.

The Patten court further pointed out that from those two sources two tests had
developed: (1) the
"common-law" elements test and (2) the strict elements test.

Citing Garnes, 229 Kan. 368, and Groves, 278 Kan. 302, the
Patten court stated that
under the "common-law" elements test, the offenses did not merge and were not multiplicitous if
each offense charged required proof of a fact not required in proving the other. Turning to the
strict elements test, the Patten court stated that the test was whether each offense
required proof
of an element not necessary to prove the other offense. If so, the charges stemming from a single
act were not multiplicitous. 280 Kan. at 389. In questioning whether the two tests were the same,
the Patten court noted that the "common-law" elements test focused on what facts
were proved in
satisfaction of the elements. On the other hand, the strict elements test focused on the elements of
the offenses charged. 280 Kan. at 389.

Acknowledging that the court's previous decisions had reflected a mix of approaches, the
Patten court pointed out that "[t]he approach used by the court in recent multiplicity
cases [had]
been determined based on the parties' arguments." 280 Kan. at 393. The Patten court
noted that
in the case before it, the State had urged the court to apply the strict elements test while Patten
had advocated consideration of the facts that proved the elements. The Patten court
determined
that the strict elements test was more appropriate than the "common-law" elements test. 280 Kan.
at 393.

The Patten court grounded its conclusion that the strict elements test should
be adopted
because it was logical, was easy to apply, and promoted certainty. By contrast, the
Patten court
stated that "[c]onsideration of the facts proved . . . puts multiplicity on a case-by-case basis." 280
Kan. at 393. Finally, the Patten court noted that by adopting the strict elements test,
the court
would "avoid any possibility of returning to the difficulties of the second prong of the
Fike test."
280 Kan. at 393. As a result, in determining when charges in a complaint or an information are
multiplicitous, the strict elements test must be used.

Now we turn out attention to the elements of the charges. The elements required for proof
of conspiracy to commit first-degree murder and conspiracy to commit aggravated intimidation
of a witness were detailed earlier. A review of the elements demonstrates that conspiring to act to
prevent or dissuade an individual from testifying at a trial is not a required element of conspiracy
to commit first-degree murder. Likewise, conspiring to attempt to intentionally kill an individual
with premeditation is not an element of conspiracy to commit aggravated intimidation of a
witness. See K.S.A. 21-3302; K.S.A. 21-3401; K.S.A. 21-3833. Hence, application of the strict
elements test shows that Moody's convictions are not multiplicitous. As a result, Moody's
conviction for conspiracy to commit aggravated intimidation of a witness must stand.

IV. Are Moody's Convictions for Attempted First-degree Murder and Aggravated
Intimidation of
a Witness Multiplicitous?

Finally, Moody contends that his convictions for attempted first-degree murder and
aggravated intimidation of a witness are multiplicitous. Moody maintains that "the act of
attempting to shoot and kill Eric Pike and the act of intimidating him into not testifying were one
and the same." The State counters that the convictions are not multiplicitous because both
offenses require proof of different facts.

Applying the Patten strict elements test, we determine that Moody's
convictions are not
multiplicitous. Acting in an attempt to prevent or dissuade an individual from testifying at a trial
is not a required element of attempted first-degree murder. Likewise, an attempt to intentionally
kill an individual with premeditation is not an element of aggravated intimidation of a witness.
See K.S.A. 21-3401; K.S.A. 21-3833. As a result, Moody's argument fails.

Affirmed.

MALONE, J., concurring and dissenting: I concur with the majority's thorough analysis
that Nicholas Moody's convictions were supported by sufficient evidence and that the trial court
did not err in denying Moody's claim of ineffective assistance of counsel. However, I respectfully
dissent from the majority's conclusion that Moody's separate conspiracy convictions were not
multiplicitous. I also disagree with the majority's conclusion that Moody's convictions of
attempted first-degree murder and aggravated intimidation of a witness were not multiplicitous.

"Multiplicity is the charging of a single offense in several counts of a complaint or
information.
The reason multiplicity must be considered is that it creates the potential for multiple
punishments
for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution and section 10 of the Kansas Constitution Bill of Rights." State
v.
Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).

In State v. Mincey, 265 Kan. 257, 258-59, 963 P.2d 403 (1998), the
defendant was
convicted of both conspiracy to commit first-degree murder and conspiracy to commit aggravated
robbery based upon an agreement with two coconspirators to rob and kill a female victim. In
determining the separate conspiracy convictions were multiplicitous, the Kansas Supreme Court
stated:

"A single continuing conspiracy, however diverse its objects, cannot be broken down into
component sub-agreements for the purpose of multiple punishments or multiple prosecutions.
When separate conspiracies are alleged and both are founded on a general conspiracy statute, the
relevant inquiry is whether there existed more than one agreement to perform an
illegal act or
acts." 265 Kan. at 268.

Here, the majority acknowledges there was one agreement between Moody and the other
conspirators to kill Eric Pike to prevent him from testifying at Isaac Rodriguez' trial.
Mincey is
directly on point and should compel the conclusion that Moody's separate conspiracy convictions
were multiplicitous. However, the majority has determined that Mincey is no longer
good law in
light of the Kansas Supreme Court's subsequent decision in State v. Patten, 280 Kan.
385, 122
P.3d 350 (2005). In Patten, the court held the defendant's convictions of manufacture
of
methamphetamine and possession of drug paraphernalia with intent to manufacture
methamphetamine were not multiplicitous. In reaching this conclusion, the court determined the
only test for multiplicity is the strict elements test without considering the facts that must be
proven to establish those elements. 280 Kan. at 393.

The majority notes the elements required to prove conspiracy to commit first-degree
murder are different from the elements required to prove conspiracy to commit aggravated
intimidation of a witness. Thus, in an attempt to apply the strict elements test to determine
multiplicity, the majority concludes Moody's separate conspiracy convictions were not
multiplicitous.

Even if the strict elements test is the only applicable test for determining multiplicity of
criminal charges, the court's holding in Mincey is still good law and has not been
modified by
Patten. It does not matter that the elements of conspiracy to commit first-degree
murder are not
all the same as the elements of conspiracy to commit aggravated intimidation of a witness. What
matters is that there was only one agreement between Moody and the other conspirators to
commit these crimes. Mincey teaches that when there is one agreement between
conspirators to
commit multiple crimes, the agreement cannot be broken down into separate conspiracy charges
for each underlying offense. 265 Kan. at 268.

Under the majority's rationale, if coconspirators reach one agreement to commit five
separate crimes, then each conspirator could be convicted of five separate conspiracy counts.
This conclusion is contrary to the court's holding in Mincey. Moody's separate
conspiracy
convictions were multiplicitous. If a jury returns guilty verdicts to multiplicitous charges, the trial
court must accept only the verdict as to the greater charge under the doctrine of merger. See
State
v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992). Accordingly, Moody's conviction of
conspiracy
to commit aggravated intimidation of a witness should be reversed.

I also disagree with the majority's conclusion that Moody's convictions of attempted
first-degree murder and aggravated intimidation of a witness were not multiplicitous. Under the
facts
of this case, I would conclude the convictions were multiplicitous because the same wrongful act
provided the basis for each offense.

Kansas courts have long recognized that separate offenses are multiplicitous when the
defendant's same wrongful act provides the basis for each offense, even though different
elements are necessary to prove each charge. In State v. Vontress, 266 Kan. 248, 970
P.2d 42
(1998), the defendant shot the victim in the course of a robbery and was convicted of separate
counts of aggravated robbery and aggravated battery. On appeal, the defendant asserted the
convictions were multiplicitous. In arguing the convictions were not multiplicitous, the State
pointed out that aggravated battery required proof of elements not necessary to prove aggravated
robbery, and vice versa. Thus, according to the State, the convictions were not multiplicitous
under the elements test. The court rejected this argument and stated:

"The State fails to acknowledge that the sole allegation of bodily harm in its
complaint
and the judge's instructions to the jury was Spires' [the victim] gunshot wounds. To prove the
bodily harm element of aggravated robbery, the State was required to prove one fact: Vontress
shot Spires--the same fact necessary for proof of the great bodily harm element of aggravated
battery. Under the information and instructions in this case, the aggravated battery count required
proof of the fact which was also required to prove the aggravated robbery charge. Therefore, the
convictions are multiplicitous, and the punishment for both crimes is a violation of double
jeopardy. The aggravated battery conviction is reversed." 266 Kan. at 257.

See also State v. Groves, 278 Kan. 302, 307-08, 95 P.3d 95 (2004) (defendant's
convictions of
aggravated battery and aggravated robbery were multiplicitous under the facts); State v.
Warren,
252 Kan. 169, 182, 843 P.2d 224 (1992) (defendant's convictions of aggravated battery and
aggravated robbery were multiplicitous when based on the same act of knocking the victim to the
ground and taking her purse).

Here, Moody was convicted for aiding and abetting Travis Kohn who attempted to kill
Pike by firing a gun at his head, but the gun misfired. Kohn was attempting to kill Pike to prevent
him from testifying at Rodriguez' trial. To prove the crime of attempted first-degree murder, the
State was required to prove one fact: Kohn attempted to kill Pike by firing a gun at his head. To
prove the crime of aggravated intimidation of a witness, the State was required to prove one fact:
Kohn attempted to kill Pike to prevent him from testifying at Rodriguez' trial. Kohn intimidated
Pike from testifying by attempting to kill him. The State concedes that the same wrongful act
provides the basis for both convictions. Based upon the rationale of Vontress,
Moody's
convictions of attempted first-degree murder and aggravated intimidation of a witness were
multiplicitous.

Warren, Vontress, and Groves have not been
overruled. Whether two separate offenses
are multiplicitous must be determined by the circumstances of each case. The facts matter and
must be considered. If a single wrongful act by the defendant provides the basis for more than
one charge, then the offenses are multiplicitous and the defendant must not receive multiple
punishments for the same act.

As it stands, Moody has been punished twice for the attempt to kill Pike. He was
punished by the sentence he received for his conviction of attempted first-degree murder. He was
also punished by the sentence he received for his conviction of aggravated intimidation of a
witness. This is precisely what the doctrine of multiplicity is designed to prevent.

The majority is correct in noting that the elements of attempted first-degree murder are
different from the elements of aggravated intimidation of a witness. Under the strict elements test
enunciated in Patten, attempted first-degree murder and aggravated intimidation of a
witness are
not multiplicitous crimes. Then again, it is difficult to discern how any two crimes are
multiplicitous under a strict elements test, since no two crimes have virtually the same elements.
In any event, the present case can be distinguished from Patten, a drug case which
did not
address the single act of violence rule of multiplicity. The holding of Patten should
be limited to
its facts and does not undermine the many prior decisions recognizing the merger of crimes when
they arise from the same wrongful act committed by the defendant.

Finally, there is no need to adopt the strict elements test as the only test for multiplicity in
order "to avoid any possibility of returning to the difficulties of the second prong of the
Fike
test." Patten, 280 Kan. at 393; see State v. Fike, 243 Kan. 365, Syl.
¶ 1, 757 P.2d 724 (1988) (a
crime may be a lesser included offense of the crime charged if the evidence required to prove the
crime charged necessarily proves the lesser crime). The "second prong of the Fike
test" was only
applicable in determining lesser included offenses, and this test has now been eliminated based
upon 1998 amendments made to K.S.A. 2005 Supp. 21-3107(2). See L. 1998, ch. 185, sec. 1;
State v. Saiz, 269 Kan. 657, 661-63, 7 P.3d 1214 (2000). However, this was never a
proper test
for determining multiplicity. The fact that Kansas appellate courts have traditionally addressed
the issue of multiplicity interchangeably with the issue of lesser included offenses has
contributed to the confusion. See Mincey, 265 Kan. at 261; Warren, 252
Kan. at 175. The
doctrine of multiplicity, which prohibits multiple punishments for a single offense, is derived
from the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and
§ 10 of the Kansas Constitution Bill of Rights. The test for multiplicity is not, and never
has
been, governed by the language of K.S.A. 2005 Supp. 21-3107(2).

Under the facts of this case, Moody's convictions of attempted first-degree murder and
aggravated intimidation of a witness were multiplicitous. Both convictions were based upon the
same wrongful act. Accordingly, Moody's conviction of aggravated intimidation of a witness
should be reversed.